State v. Gross ( 2018 )

[Cite as State v. Gross, 2018-Ohio-4557.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, : CASE NO. CA2018-01-001
Plaintiff-Appellee, : OPINION
11/13/2018
:
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:
FRANKLIN B. GROSS, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 16CR12193
Martin P. Votel, Preble County Prosecuting Attorney, Eric E. Marit, Preble County
Courthouse, 101 East Main Street, Eaton, OH 45320, for plaintiff-appellee
Engel and Martin LLC, Joshua A. Engel, Mary K. Martin, 4660 Duke Drive, Suite 101,
Mason, OH 45040, for defendant-appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Franklin Gross, appeals his conviction in the Preble
County Court of Common Pleas for rape.
{¶ 2} In March 2016, appellant and his three adult children, daughter Courtney and
sons Christopher ("Chris") and Cody, lived together in appellant's house, an A-frame
structure. Appellant's and Chris' bedrooms were on the first floor; Courtney's and Cody's
bedrooms were on the second floor. A couch and love seat arranged in an "L" shape in the
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living room were visible from a balcony on the second floor.
{¶ 3} On March 12, 2016, the victim and Shawna Schnitker ("Shawna") went bar-
hopping with Courtney. Jesse Isaacs ("Jesse"), Courtney's boyfriend, eventually joined
them. The victim and Shawna drank and smoked marijuana and were both quite intoxicated
by the time the group left the last bar around 2:00 a.m. on March 13, 2016. Consequently,
Courtney invited the victim and Shawna to spend the night at appellant's nearby house.
{¶ 4} Shortly after arriving at appellant's house, the three women and Jesse retired
for the night. Courtney gave a blanket to the victim. The victim slept on the couch and
Shawna slept on the love seat. Courtney and Jesse slept in her bedroom. Appellant and
his sons slept in their respective bedrooms.
{¶ 5} Around 6:30 a.m. on March 13, 2016, the victim awoke, face down on the
couch, with her underwear and jeans around her ankles. She could feel someone on top
of her from behind. Moreover, she could feel skin to skin contact and lower pressure around
her vagina. Being somewhat disoriented and confused, the victim turned to look back and
saw appellant, naked, humping her from behind. Upon noticing that the victim had awaken,
appellant got off of her and walked to the other side of the living room before leaving the
room altogether. Upon realizing what had happened, the victim sat up, pulled up her pants
and underwear, and woke up Shawna.
{¶ 6} The two went to another friend's home, and then to the emergency room
where the victim was interviewed and examined by a sexual assault nurse examiner
("SANE nurse"). The examination revealed no injuries. As part of her examination, the
SANE nurse took four swabs from the victim's vagina, two internally and two externally.
The swabs were submitted for analysis. The analysis revealed semen matching appellant's
DNA on all four vaginal swabs.
{¶ 7} Appellant denied he had sexual contact or engaged in sexual conduct with
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the victim. Rather, appellant claimed he twice got up during the night to tend to the victim
because she was coughing hard and he feared she would vomit. Appellant noticed that the
victim was twisted in the blanket, with her underwear and jeans down to her knees.
Appellant claimed that while tending to the victim, she urinated on herself. Consequently,
appellant grabbed a dirty towel from the bathroom and placed it either underneath or behind
the victim. Appellant claimed that his semen found in the victim's vagina was a secondary
transfer from the towel, which he had used earlier in the evening to clean himself after
masturbating while watching a pornographic movie.
{¶ 8} Appellant was indicted in December 2016 on two counts of rape, two counts
of gross sexual imposition, and three counts of sexual imposition. A jury trial was held on
September 25, 2017. The victim, Shawna, the SANE nurse, the victim's friend, Detective
Dean Miller of the Preble County Sheriff's Office, and Mary Cicco, a forensic scientist in the
DNA field, testified on behalf of the state. Appellant, his three children, and Jesse testified
on behalf of appellant. Following the state's case-in-chief, appellant moved to dismiss one
count of rape and one count of gross sexual imposition, arguing the state failed to prove
appellant committed the offenses with force or threat of force. Appellant further argued the
state failed to prove penetration. The trial court overruled the motion. Subsequently, the
state dismissed the three counts of sexual imposition.
{¶ 9} On September 27, 2017, the jury found appellant guilty on both counts of rape
and both counts of gross sexual imposition. At sentencing, the trial court merged the
second rape count and both gross sexual imposition counts with the first rape count as
allied offenses of similar import. The court then sentenced appellant to four years in prison.1
1. We note that appellant was convicted of rape in violation of R.C. 2907.02(A)(1)(c), a felony of the first
degree. At sentencing, the trial court properly notified appellant, "The Defendant will serve a mandatory period
of postrelease control of five years." However, the trial court's November 15, 2017 sentencing entry incorrectly
states, "The Court has further notified the Defendant that post release control is mandatory in this case up to
a maximum of five years for the second degree mandatory
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{¶ 10} Appellant now appeals, raising two assignments of error.
{¶ 11} Assignment of Error No. 1:
{¶ 12} THE CONVICTION FOR RAPE IN THIS MATTER WAS NOT SUPPORTED
BY SUFFICIENT EVIDENCE.
{¶ 13} Appellant argues that his rape conviction is not supported by sufficient
evidence because the state failed to prove penetration.
{¶ 14} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own
motion, after the evidence on either side is closed, shall order the entry of a judgment of
acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or
offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion pursuant to the
same standard as that used to review a sufficiency-of-the-evidence claim. State v. Wright,
12th Dist. Fayette No. CA2017-10-021, 2018-Ohio-1982, ¶ 22.
{¶ 15} When reviewing the sufficiency of the evidence underlying a criminal
conviction, an appellate court examines the evidence in order to determine whether such
evidence, if believed, would support a conviction. Id. at ¶ 23. The relevant inquiry is
"whether, after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt." State v. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-
2321, ¶ 22.
{¶ 16} Appellant was convicted of rape, in violation of R.C. 2907.02(A)(1)(c), which
provides in relevant part that
No person shall engage in sexual conduct with another who is
not the spouse of the offender when [t]he other person's ability
to resist or consent is substantially impaired because of a
physical condition and the offender knows or has reasonable
cause to believe that the other person's ability to resist or
sentence."
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consent is substantially impaired because of a physical
condition.
{¶ 17} As pertinent to this appeal, sexual conduct means "without privilege to do so,
the insertion, however slight, of any part of the body * * * into the vaginal or anal opening of
another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse."
R.C. 2907.01(A).
{¶ 18} The victim testified she woke up, face down on the couch, with her underwear
and jeans around her ankles. She could feel someone on top of her from behind. Further,
she could feel skin to skin contact and lower pressure around her vagina. When she turned
to look back, she saw appellant, naked, humping her from behind. The victim further
testified that later on at the emergency room, she experienced some blood spotting even
though she was not on her period and had not experienced spotting before sleeping at
appellant's house. She further noticed that her vaginal area was "kind of raw" and that she
"had a little pain." The victim admitted that she did not know whether appellant had
ejaculated. She further admitted telling Detective Miller that she did not believe appellant
had ejaculated into her vagina and that she was not sure whether he had penetrated her.
However, she could feel appellant's penis in the area of her crotch and vagina during the
incident.
{¶ 19} The SANE nurse testified she interviewed and examined the victim. The
sexual assault report completed by the nurse and containing a transcription of statements
the victim made during the examination, was admitted into evidence. The victim described
finding appellant on top of her, "straddling [her] from behind" and "moving in a motion like
he was having intercourse." The victim told the nurse she was "not sure if [appellant] had
completely penetrated me or how long he was on top of me but I could feel his penis in my
vaginal area while he made that humping motion." The victim complained of tenderness in
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the vaginal area, however the examination revealed no injuries.
{¶ 20} Cicco, the DNA forensic scientist, testified that a dry stain swabbed from the
victim's buttocks matched appellant's DNA. She further testified that semen matching
appellant's DNA was found on all four vaginal swabs. Hence, appellant's semen was found
inside the victim's vagina. Nonetheless, Cicco could not tell whether penetration had
occurred. In addition to penetration, Cicco acknowledged that semen could be "introduced
to a person's body in more than one fashion" through secondary transfer. Cicco conceded
that secondary transfer could occur through a careless exterior swabbing of the vaginal
cavity or the use of the semen-covered towel on the victim's naked body. This was so
because of the sticky, mucous nature of semen:
Everything in that vicinity is very closely related in proximity
which is why my testing cannot tell penetration. I can tell you
that semen was present. I can tell you what the DNA result is.
I cannot tell you if penetration occurred because of the nature
of semen and how it drains and seeps * * * just the way the body
fluid works.
{¶ 21} Appellant argues that given the victim's vague testimony and Cicco's "explicit"
testimony that "the presence of semen in the alleged victim's vagina was not evidence of
penetration," the state failed to prove penetration. Appellant cites several decisions in
support of his argument, including the Ohio Supreme Court's decision in State v. Ferguson,
5 Ohio St.3d 160 (1983). In four of the cases cited by appellant, the reviewing courts found
there was insufficient evidence of penetration. The fifth case involved attempted unlawful
sexual conduct with a minor, and the last case only referred to penetration in its facts.
{¶ 22} In Ferguson, the supreme court considered whether a victim's testimony that
she and the defendant "had intercourse a couple times" was sufficient evidence of sexual
conduct to uphold a rape conviction. The supreme court found that it was not, stating
We hold that the state's evidence on the element of sexual
conduct was insufficient to establish that appellee had either
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vaginal or anal intercourse with the victim. The victim's
testimony was that she and appellee only had "intercourse."
The victim did not testify that she and appellee had sexual
intercourse, nor did the victim testify as to any degree of
penetration. Inasmuch as one of the accepted definitions of the
term "intercourse" relates to sexual intercourse, we could infer
from the victim's testimony that she and appellee engaged in
sexual intercourse. Two considerations prevent us from
drawing that inference. First, in recognition of the state's burden
of proof in criminal cases, we will not draw inferences against
the accused from what must be characterized as vague and
ambiguous testimony. Second, the record is completely devoid
of any other evidence from any source that appellee and the
victim engaged in "sexual intercourse" on the evening in
question.
Consequently, in a rape prosecution where the state's evidence
is essentially the testimony of the victim, and where the victim
testifies that she and the accused only had "intercourse" and
does not testify as to any degree of vaginal or anal penetration,
convictions on charges relating to either vaginal or anal
intercourse are based on insufficient evidence.
(Emphasis sic.) Id. at 167-168.
{¶ 23} We find that Ferguson is not applicable. The victim testified that appellant
was behind and on top of her, humping her, that she could feel skin to skin contact and
pressure around her vagina, and that she could feel appellant's penis in the area of her
crotch and vagina during the incident. This testimony was more detailed and specific than
the "vague and ambiguous testimony" that "we had intercourse a couple times" in Ferguson.
Additionally, and unlike in Ferguson, appellant's semen was found in the victim's vagina.
While this evidence was not conclusive of penetration, it is consistent with penetration.
{¶ 24} We likewise find that the other decisions cited by appellant are distinguishable
and therefore inapplicable, in that (1) there was no context for the medical findings because
the infant victim could not testify as to what happened, see State v. Murphy, 5th Dist. Stark
No. 2015CA00024, 2015-Ohio-5108; (2) there was no evidence of the offender's semen in
the victim's vagina or anal cavity, see In re J.S., 8th Dist. Cuyahoga No. 102800, 2015-
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Ohio-4990; (3) the appellate court specifically noted the absence of semen inside the
victim's anus, see State v. Lee, 10th Dist. Franklin No. 03AP-436, 2004-Ohio-5540; or (4)
the cases do not stand for the proposition that testimony of "pressure" to the vaginal area,
when combined with other evidence, cannot support a conviction for rape. See State v.
Brannon, 12th Dist. Butler No. CA2016-05-096, 2017-Ohio-628; State v. Valenzona, 8th
Dist. Cuyahoga No. 89099, 2007-Ohio-6892.
{¶ 25} Contrary to appellant's assertion, Cicco did not testify that the presence of
appellant's semen in the victim's vagina was not evidence of penetration. Rather, she
testified that she could not tell whether penetration had occurred, nor could she opine
whether the presence of the semen in the victim's vagina resulted from penetration or
secondary transfer.
{¶ 26} In a recent case from the Eighth Appellate District, a victim testified that she
went to sleep after consuming numerous alcoholic drinks, that she did not believe she had
been penetrated, and that to her knowledge, she did not have sexual intercourse that night.
There was no physical evidence of penetration. However, the offender's DNA was found
on all of the victim's vaginal swabs, and two of the swabs were taken from the victim's
vaginal canal and cervix. Based upon the foregoing evidence, the appellate court upheld
the offender's rape conviction as follows:
Pivotally, the record also indicates that semen was present on
all four vaginal swabs and all four anal swabs, as well as on [the
victim's] undergarment. In addition, the record indicates that
I.N.R.'s DNA was found on [the victim's] vaginal swabs, anal
swabs, and undergarments. Thus, because I.N.R.'s DNA was
found in [the victim's] vaginal canal and cervix, any rational trier
of fact could conclude that I.N.R. penetrated the victim as she
lay sleeping, following an episode of binge drinking.
Although the evidence of penetration is circumstantial, we note
that circumstantial evidence has the same probative value as
direct evidence. As such, in reviewing the evidence in a light
most favorable to the prosecution, we find that any rational trier
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of fact could conclude there exists sufficient evidence to sustain
I.N.R's delinquency adjudication.
(Citations omitted.) In re I.N.R., 8th Dist. Cuyahoga No. 99983, 2014-Ohio-3582, ¶ 34-35.
{¶ 27} Here, viewing the victim's testimony, the forensic evidence of appellant's
semen inside the victim's vagina, and Cicco's testimony as to how the semen could have
found its way into the vagina, including through penetration, in a light most favorable to the
prosecution, we find there was sufficient evidence of penetration. See In re I.N.R.; State v.
Carter, 89 Ohio St.3d 593 (2000) (finding sufficient evidence of penetration to support a
rape conviction where defendant's semen was found in the decedent's rectum, where
defendant denied any sexual conduct with the decedent, and where defendant presented
a theory at trial that his semen was deposited on the outside of the body and seeped into
the anus).
{¶ 28} Appellant nonetheless argues that the jury "could not infer penetration from
the presence of semen" in the victim's vagina because such inference was "directly
contradicted by testimony that the mere presence of DNA in a person's vagina is not, in
fact, evidence of penetration," and because there were competing constructions of the
evidence, namely that given its sticky and mucous nature, the semen found in the victim's
vagina could have resulted from a careless swabbing of the vagina or the use of the semen-
covered towel.
{¶ 29} Once again, we reiterate that Cicco did not testify that the presence of
appellant's semen in the victim's vagina was not evidence of penetration. The fact that the
forensic evidence as to the semen's presence in the victim's vagina is equally susceptible
to inferences of innocence as well as inferences of guilt does not mean that the evidence
was insufficient to support appellant's rape conviction. It is well-established that where the
state relies on circumstantial evidence to prove an element of the offense charged, the
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evidence need no longer be irreconcilable with any reasonable theory of innocence to
support a conviction. State v. Jenks, 61 Ohio St.3d 259, 273 (1991), overruling State v.
Kulig, 37 Ohio St.2d 157 (1974); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954.
Hence, the jury was "not required to accept a 'competing inference of innocence' when the
same circumstances could also infer guilt beyond a reasonable doubt." State v. Sutton, 8th
Dist. Cuyahoga No. 100037, 2014-Ohio-1074, ¶ 38.
{¶ 30} In light of the foregoing, we find there was sufficient evidence to support
appellant's rape conviction. Appellant's first assignment of error is overruled.
{¶ 31} Assignment of Error No. 2:
{¶ 32} THE CONVICTION IN THIS MATTER WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 33} Appellant argues that his rape conviction is against the manifest weight of the
evidence because the victim's testimony was not credible and was contradicted by
"significant, additional evidence." Appellant asserts the victim's testimony was not credible
because she had been drinking and smoking marijuana before the incident and was
therefore intoxicated.
{¶ 34} A manifest weight of the evidence challenge examines the "inclination of the
greater amount of credible evidence, offered at a trial, to support one side of the issue rather
than the other." State v. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091,
¶ 17. To determine whether a conviction is against the manifest weight of the evidence, the
reviewing court must look at the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in resolving the
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. An
appellate court will overturn a conviction due to the manifest weight of the evidence only in
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extraordinary circumstances when the evidence presented at trial weighs heavily in favor
of acquittal. Id. at ¶ 18.
{¶ 35} At trial, the victim acknowledged that she was quite intoxicated by the time
she went to appellant's house, that she could not "really recall what happened once we got
there" and before she went to sleep on the couch, and that she was confused and
disoriented when she woke up, with appellant humping her from behind. The victim
explained, "It took a minute to realize where I was, let alone what was happening. I was
confused, really confused." The victim testified she did not scream, call out, or talk to
appellant at the time of the incident. Rather, she pulled up her underwear and jeans, woke
up Shawna, and left appellant's house as quickly as possible. While her lower stomach and
jeans were wet, mid-thigh up, she did not believe she had urinated on the couch. She
explained that while "I've drank and done my fair share of recreational drugs[,] I've never
been one to vomit in my sleep, urinate in my sleep."
{¶ 36} The victim testified that she was "pretty hysterical" and "crying pretty hard"
while driving to her friend's house, and that once there, she collapsed onto a fetal position,
cried, and refused to be physically comforted. Her testimony was corroborated by the
testimony of her friend and Shawna. The victim was examined by the SANE nurse at 9:30
a.m. The nurse testified that the victim was alert and oriented during examination and that
she was tearful at times.
{¶ 37} Appellant asserts that the victim's testimony was not credible and was
contradicted by "significant, additional evidence," namely the testimony of his children and
Jesse. Jesse testified he heard the victim cough on two occasions and appellant check on
the victim. Courtney testified she heard strong coughing in the middle of the night.
However, she told Detective Miller she assumed it was appellant as he and his children all
smoke. Appellant's children and Jesse testified that no one screamed, yelled, or called out
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during the night. However, as stated above, the victim testified she did not scream, call out,
or talk to appellant at the time of the incident. Trial testimony indicates that Shawna was
the only one sleeping in the same room as the victim, and that appellant's children and
Jesse all slept in bedrooms with their doors either closed or partially closed. Courtney and
Jesse both testified that the victim had urinated on the couch, that the smell of urine was
strong, and that appellant ordered that the couch be cleaned. Appellant's children and
Jesse all admitted that their knowledge of the victim urinating on the couch came directly
from appellant and not from their own, independent observation.
{¶ 38} As stated earlier, appellant denied he had sexual contact or engaged in sexual
conduct with the victim. Rather, appellant claimed he twice got up during the night to tend
to the victim because she was coughing hard and he feared she would vomit. Upon
checking on the victim, appellant noticed that she was twisted in the blanket, with her
underwear and jeans down to her knees. While appellant was tending to the victim the
second time, she urinated on herself. Consequently, appellant grabbed the semen-covered
towel from the bathroom and placed it either underneath or behind the victim. Appellant
admitted that rather than tending to the victim himself, he could have woken up Shawna or
Courtney, especially since the latter was not intoxicated after bar-hopping. However,
appellant testified he did not wake up Shawna for fear she would blame him for the fact the
victim's jeans and underwear were down to her knees. Likewise, appellant did not wake up
Courtney because he did not want her to deal with the situation.
{¶ 39} Trial testimony revealed that appellant did not mention that the towel was
semen covered during his interview with Detective Miller two days after the incident, and in
fact did not publicly speak about it until his jury trial. Trial testimony further revealed that
following the release of the DNA report and appellant's arrest, appellant contacted Planned
Parenthood and inquired the following: "If my girlfriend jerked me off and I wiped off the
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semen on a wet to damp towel, how possible would it be to find semen inside of her vagina."
Appellant testified he was told it was possible, and that "[f]rom the towel [semen] will travel
towards the vagina because that's what the semen does."
{¶ 40} As to the victim's motive behind her rape allegations, appellant surmised the
victim either hallucinated or made up a story because she was embarrassed for having
urinated on the couch. Appellant further surmised that "[m]aybe [the victim] woke up in the
morning, realized she had wet herself, and used a towel and wiped herself before getting
dressed."
{¶ 41} "A witness' intoxication is one of many factors that may be weighed by the
jury in assessing credibility." State v. Miller, 6th Dist. Erie No. E-16-037, 2017-Ohio-7986,
¶ 21. While it may provide appropriate fodder for cross-examination, it does not render the
witness' testimony per se incredible, nor does it require the jury to discredit all of the witness'
testimony. Id.; State v. Jarrell, 10th Dist. Franklin No. 96APA03-357, 1996 Ohio App. LEXIS
5767, * 32 (Dec. 17, 1996).
{¶ 42} We find that the jury did not lose its way and create such a manifest
miscarriage of justice in finding appellant guilty of rape. The jury heard testimony that the
victim had been drinking and had smoked marijuana while bar-hopping and that she was
quite intoxicated by the time she arrived at appellant's house. However, the SANE nurse
testified that the victim was alert and oriented by the time the examination began at 9:30
a.m. Appellant provided an explanation as to why his semen and DNA were inside the
victim's vagina. His children and Jesse testified on his behalf.
{¶ 43} As the trier of fact, the jury was in the best position to see and hear the
witnesses, and observe their demeanor, equivocation, and candor when it determined the
weight to be given their testimony. See Wright, 2018-Ohio-1982 at ¶ 30; Miller, 2017-Ohio-
7986 at ¶ 12. By its verdict, the jury plainly chose to credit the testimony of the victim and
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conclude that appellant's version was not credible. The jury heard all of the testimony,
considered the evidence, and found the state's theory of the case and its witnesses credible,
and we will not disturb the jury's verdict on appeal. Appellant's rape conviction is therefore
not against the manifest weight of the evidence. Miller at ¶ 22; In re I.N.R., 2014-Ohio-3582at ¶ 42-43.
{¶ 44} Appellant's second assignment of error is overruled.
{¶ 45} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.
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